When a patient suffers harm due to medical negligence, the impact often extends beyond the immediate medical issues. The journey forward can involve financial uncertainty, emotional distress, and difficult decisions. While compensation cannot undo the harm done, it serves as a form of redress, supporting patients as they navigate the aftermath and work toward recovery and regaining stability in their lives.
Many claims are resolved through negotiations, while others require litigating disputes in court. Patients are not expected to navigate this legal landscape alone. Lawyers play a crucial role in clarifying the process, preparing the claim, and ensuring that fair outcomes are achieved.
Understanding what types of damages can be claimed is essential. It ensures that no aspect of the harm, whether financial, physical, or emotional, is overlooked, whether the claim is resolved in a settlement or decided by a judge.
Once liability is established, the court will assess an amount of damages based on the impact of the negligence committed. With the guidance of legal counsel, patients can better understand the forms of compensation available and how the assessment process works. This is known as the “assessment of damages”.
Damages aim to compensate the patient for physical, financial, and emotional harm. The guiding principle is to restore the patient, as far as money can allow, to the position they would have been in had the negligence not occurred. This is known as the compensatory principle.
In this article, we explain the main types of damages a patient may claim in medical negligence cases.
Special Damages
Special damages are often overlooked, but they can make up a substantial portion of a patient’s claim. They cover actual out-of-pocket expenses, such as hospital bills or travel costs, that were incurred due to the negligence and can be specifically proven.
Special damages compensate patients for the actual, out-of-pocket expenses they have incurred as a direct result of the negligence. These are tangible and quantifiable losses suffered from the date of the negligent act up to the date of judgment. While often seen as secondary to general damages, special damages frequently make up a substantial portion of a plaintiff’s overall claim.
They are distinct from general damages in that they must be specifically pleaded and proven. Courts will require not only that the nature of the loss be described, but that it is justified and supported by evidence, whether oral or documentary.
Common examples of special damages include:
- Hospital and medical expenses
- Travelling expenses
- Traditional, complementary, or rehabilitative treatment
- Medical reports by treating doctors
- Pre-action discovery applications to obtain medical records
- Home modifications and assistive equipment (e.g. ramps, hoists, therapy tools)
- Funeral and memorial expenses (in fatal cases)
- Obtaining the grant of letters of administration or probate
There are some general principles and recurring misconceptions that merit clarification.
First, special damages are recoverable so long as they are reasonable and justifiable. The courts recognise that patients may incur a wide range of expenses depending on, amongst others, the severity of their injuries and the complexity of their treatment. The key consideration is whether the expenditure is sensible in light of the facts and not excessive or extravagant.
Secondly, such damages must be specifically pleaded and particularised in the statement of claim. However, the court is not rigidly bound by the amount pleaded. Where the evidence shows a higher actual loss, the court is entitled to award the greater amount. This principle was applied in Mat Jusoh bin Daud v Syarikat Jaya Seberang Takir Sdn Bhd [1982] 2 MLJ 71.
Thirdly, documentary proof, though ideal, is not always required. Courts have accepted that in real life, patients may not retain every receipt, especially where treatments span years or involve incidental costs. In Nur Syarafina bt Sa’ari v Kerajaan Malaysia & Ors [2019] 12 MLJ 741, the High Court held that oral testimony may suffice if the expenses incurred are reasonable and consistent with the injuries sustained.
The Court of Appeal in Rohgetana Mayathevan v Dr Navin Kumar & Ors [2017] 4 MLJ 102 likewise emphasised that special damages can be proven by oral or documentary evidence, provided the amounts claimed are reasonable and justifiable. The court permitted claims for therapies and complementary treatments even in the absence of receipts.
This position was reaffirmed by the Court of Appeal in Qi Qiaoxian (claiming as the mother and dependent of Qi Xiangqing, deceased) & Anor v Sunway Putra Hotel Sdn Bhd [2024] MLJU 732, which held that special damages need not be proven solely through documents. Credible oral evidence may suffice, especially where expenses are reasonable and consistent with the facts. The Court relied on section 134 of the Evidence Act 1950 to emphasise that no particular form or quantity of evidence is required.
Fourthly, the court will also consider whether the claims are contested. Where a defendant fails to challenge a specific item meaningfully, the court may accept the plaintiff’s oral evidence as sufficient. In Pantai Medical Centre Sdn Bhd v Fareed Reezal bin Arund [2022] 4 MLJ 529, the Court upheld an award for loss of earnings despite the lack of documentation, based on the strength of the plaintiff’s unchallenged testimony.
In summary, a well-pleaded and reasonably supported special damages claim, whether through documents, credible oral evidence, or a combination of both, will be favourably considered. Patients are not held to an unrealistic evidentiary standard; however, they must still demonstrate that their losses were real, connected to the injury, and reasonably incurred.
Pre-Trial Damages
Pre-trial damages are a subset of special damages. They capture costs incurred after the lawsuit is filed but before the court delivers its judgment. These are often necessary and substantial, especially in long-running litigation.
For example, a patient may continue to undergo treatment, purchase medication, attend rehabilitation sessions, or incur transportation and care costs during the pendency of the litigation. These ongoing expenses, though incurred after the claim is filed, remain claimable as long as they are reasonable and supported by evidence.
Like special damages, the patient must demonstrate that the expenses were incurred as a result of the injury and were medically or practically necessary. Where documentation is unavailable, courts may accept oral evidence, provided it is credible and consistent with the nature of the harm.
Ultimately, pre-trial damages ensure that a patient is compensated for necessary and continuing losses arising from the injury, even while the litigation is ongoing.
General Damages
General damages address the human aspect of harm. They are awarded for intangible losses, pain, emotional distress, and the disruption of everyday life that naturally flow from the injury, even if no receipts or bills exist. These include:
- Pain and suffering
- Loss of the amenities of life
- Emotional distress and psychological harm
- Loss of earnings or earning capacity
- The value of care and assistance reasonably provided by family members due to the injury
Unlike special damages, general damages are not tied to specific bills or receipts. They reflect the real-life impact of the injury on physical function, independence, emotional well-being, and the ability to carry out work, household, or social activities.
By law, general damages are presumed to flow from the wrong and do not need to be specifically pleaded. In Noorasmawati bt Abu Othman v Kerajaan Malaysia & Ors [2021] MLJU 2439, the court reaffirmed this principle.
The court will assess general damages based on the overall evidence, including medical records, expert reports, testimony, and guidance from similar cases. This is not a technical calculation, but a grounded evaluation of how the injury has changed the patient’s life.
Higher awards are generally given in cases of permanent disability, disfigurement, or serious limitations in mobility. Courts also consider the patient’s age and family role—for instance, if the person is a child, elderly, or a caregiver whose daily responsibilities have been disrupted.
Importantly, the court is not required to adopt a detached or clinical view. Just because a person can still function in some areas does not mean their losses are minor. The law does not impose a minimum threshold of suffering before compensation becomes available.
In Norfazlin Zamani v Government of Malaysia & Ors [2022] MLJU 3696, the court awarded RM260,000 in general damages for a negligent emergency caesarean that caused bladder injuries and required multiple surgeries. The judgment recognised not just the physical harm, but the long-term pain, emotional toll, and loss of autonomy.
In Nurul Iman binti Abu Mansor v Gleneagles Hospital Kuala Lumpur Sdn Bhd & Anor [2025] 9 MLJ 22, the plaintiff lost sensation in three fingers due to a negligent carpal tunnel release. Although the injury appeared localised, the court awarded RM1.1 million in general damages, reflecting the broader loss: diminished fine motor control, impact on writing and work, and psychological strain from reduced independence and confidence. The case is currently pending appeal.
In short, general damages reflect the deeper impact of injury, what’s lost in daily life, not just what can be counted.
Future Damages
Future damages look ahead. They compensate patients for reasonably anticipated losses after judgment, covering ongoing care, treatment, or assistance that the patient will likely need due to the injury. These include:
- Long-term medical care and treatment
- Ongoing medication and follow-up consultations
- Future surgeries or rehabilitative procedures
- Assistive devices or equipment that may require replacement or upgrading
- The value of future care and supervision by family members or paid caregivers
- Related travel and logistical costs, including transport for treatment or care
These damages are assessed on a once-and-for-all basis. Patients cannot return to court later to seek further compensation, even if their condition deteriorates. The objective is to anticipate, as far as reasonably possible, the needs that the patient will face in the future and to ensure those needs are adequately accounted for in a single award.
The assessment of future damages is guided by expert evidence. Courts are not required to forecast the future with certainty, but to assess whether there is a substantial, not speculative, likelihood that the loss or need will arise. This principle is well established in Inas Faiqah Mohd Helmi v Kerajaan Malaysia & Ors [2016] 2 CLJ 885.
Courts evaluate expert evidence to determine what is reasonably foreseeable, not merely possible. They are not expected to “wait for the worst” before recognising legitimate needs, nor should a patient be under-compensated simply because a particular risk has not yet materialised.
Life expectancy is a key factor in this analysis. In Nurul Husna binti Muhammad Hafiz & Anor v Government of Malaysia & Ors [2015] 1 CLJ 825, Justice Vazeer Alam explained that future damages must be based on reasoned estimates rather than mathematical precision.
Courts also recognise that compensation itself may enable better care, potentially improving the patient’s prognosis or longevity. Future damages must therefore account for both the baseline condition and the possibility of positive developments arising from treatment.
Ultimately, the goal is not certainty, but adequacy, ensuring the patient is not left without the means to meet foreseeable needs.
Aggravated Damages
Of all the heads of damages in medical negligence, aggravated damages are arguably the most controversial. They are not automatic, but may be granted where the court finds that the harm suffered by the patient was made worse, emotionally or psychologically, by the defendant’s conduct.
Aggravated damages are a species of compensatory damages. They are intended to address intangible harm to the patient’s dignity, autonomy, or sense of worth, especially where the defendant’s conduct has been high-handed, dismissive, dishonest, or obstructive.
Courts have considered the following conduct as potentially aggravating:
- Insolent or dismissive behaviour toward the patient or their family
- Inaccurate or dishonest documentation
- Failure to follow hospital guidelines or to disclose material risks
- Suppression or delay in releasing medical records
- Prolonged refusal to admit liability in clear-cut cases
- Litigation tactics that unnecessarily prolong or complicate proceedings
In Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors [2018] 1 MLJ 784, the Court of Appeal described aggravated damages as additional compensation for the injury to a plaintiff’s personality, caused or exacerbated by exceptional conduct.
In Thompson v Commissioner of Police of the Metropolis [1997] 2 All ER 762, the English Court of Appeal affirmed that aggravating features can also include the way the litigation and trial are conducted.
In Dr Hari Krishnan & Anor v Megat Noor Ishak Megat Ibrahim & Anor [2018] 3 MLJ 281, the Federal Court upheld an award of aggravated damages in a medical negligence claim. Other decisions have followed suit:
- Dato’ Stanley Isaacs v Government of Malaysia & Ors [2019] 8 MLJ 331 – RM500,000 for false pleadings and aggravation
- Ahmad Radhiq Arbee v Kerajaan Malaysia & Ors [2020] MLJU 236 – RM300,000 for prolonged denial of liability
- Loganathan a/l Thiagarajan v Dr Lee Mun Toong [2025] MLJU 922 – RM500,000 for traumatic experience and dismissive conduct
- Nur Syarafina binti Sa’ari v Kerajaan Malaysia & Ors [2019] 9 CLJ 246 – RM200,000 for the refusal to release medical records
These cases demonstrate that aggravated damages are awarded not solely for the underlying medical error, but for how the patient was treated as a person, before, during, and after the harm. The court will examine whether the defendant’s conduct intensified the injury or imposed an additional layer of emotional or psychological suffering.
Courts also consider whether the defendant unnecessarily prolonged the litigation or acted oppressively, as noted in Ahmad Radhiq Arbee v Kerajaan Malaysia & Ors [2020] 10 MLJ 459.
Legal Costs
Litigation costs can be steep. An award of party-and-party costs helps successful claimants recover part of the legal expenses they reasonably incurred while bringing or defending the claim.
Such costs may include:
- Court filing fees and disbursements
- Expert report fees and attendance charges
- Travel and accommodation for witnesses (if necessary)
- Interpreter or translation costs
- Getting-up fees for trial preparation
In assessing costs, the courts consider a range of factors, including:
- The complexity and seriousness of the issues
- The skill, time, and responsibility required of counsel
- The number and importance of documents reviewed or tendered
- Whether a specialist or senior counsel was engaged
- The significance of the matter to the parties involved
In medical negligence litigation, costs are often higher than in commercial cases due to the volume of records, the involvement of experts, and the evidentiary and procedural demands of the case. Courts have recognised this and may award higher costs accordingly (see Sheela Christina Nair v Regency Specialist Hospital Sdn Bhd & Ors [2016] 9 CLJ 267).
Order 59 rule 6(1) of the Rules of Court 2012 provides that costs must be assessed based on what is fair and reasonable in the circumstances. While costs remain a matter of discretion, the guiding principle is that a successful party should not be penalised for reasonably incurred expenses in pursuing a meritorious claim.
While party-and-party costs rarely cover the full legal bill, they can significantly reduce the burden on successful claimants.
Interest
Interest isn’t just financial housekeeping; it plays a vital role in ensuring fair compensation. It accounts for the delay between when harm occurred and when compensation is finally received.
Although interest is awarded at the court’s discretion, the Malaysian courts generally apply a well-accepted framework:
- Special damages: 4% per annum from the date of the incident to the date of judgment
- General damages: 8% per annum from the date of service of the writ to the date of judgment (Civil Law Act 1956, s 11(1))
- Post-judgment interest: 5% per annum from the date of judgment until full payment (Order 42 Rule 12, Rules of Court 2012)
- Costs: May attract post-judgment interest at 5% per annum (Order 59 Rule 24, Rules of Court 2012)
These rates are not fixed or automatic. The court may adjust the rate based on the conduct of the parties, the duration of proceedings, or any undue delay. For example, interest may be reduced where the plaintiff caused a significant delay or rejected a reasonable settlement offer. Conversely, it may be maintained or increased where the defendant unnecessarily prolonged the litigation or forced the matter to trial.
Notably, interest is not awarded on future damages, as these are intended to compensate for losses that will arise only after judgment has been rendered. To impose interest on such sums would result in overcompensation. This principle was affirmed in Murtadza bin Mohamed Hassan v Chong Swee Pian [1980] 1 MLJ 216 and remains settled law.
Conclusion
Damages in medical negligence are not just numbers on a page; they represent the courts’ recognition that harm takes many forms. Behind every award lies a story of pain, disruption, and the hope for some measure of resolution.
Understanding the types of damages available is essential for both claimants and practitioners. It provides a clearer picture of what a patient may be entitled to and how the courts quantify loss. While the legal principles are well-established, applying them requires careful attention to the facts, medical evidence, and the real human impact involved.
The categories discussed above, namely special, general, future, aggravated damages, interest, and costs, are among the most commonly claimed, but they are by no means exhaustive. Each case must be assessed on its own merits. The strength and availability of any claim will also depend on the supporting evidence and whether the loss can be traced to the negligent act or omission.
Ultimately, compensation in medical negligence cases is about restoring dignity, security, and a measure of justice. The law does not promise a perfect remedy, but it does offer a meaningful path forward. When fairly applied, the assessment of damages becomes more than a legal exercise; it becomes part of the patient’s path to dignity, healing, and closure.
By Jeremy Balang and Elissanur Suraya
Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.
